As he was ruling for Advocate | Times-Picayune reporter Andrea Gallo who got sued by Louisiana Attorney General Jeff Landry when she submitted a public records request to the AG’s office, Judge Timothy Kelley of the 19th Judicial District in Baton Rouge rejected an argument that Landry needed to be fined.
A ruling that Landry acted arbitrarily and capriciously in withholding a public record would obviously benefit reporters who request government documents to do their jobs, but as attorney Scott Sternberg pointed out at Thursday’s hearing, public records laws aren’t just for media professionals. “If Miss Gallo didn’t have The Advocate and their lawyers, and their budgets,” Sternberg said, “she would just be a normal person who made a public records request.”
A normal person who would likely be scared away at the thousands of dollars it would cost defending herself from a lawsuit filed by a state agency.
Kelley, who correctly ruled that the document Gallo sought should be turned over to her, didn’t find that Landry had acted arbitrarily and capriciously. To the contrary, he described Landry as having been “diligent in the way he approached this matter.”
“Does it end up in a situation (where) everyone that gets a public records request is going to file a declaratory judgment? I don’t think that it will,” Kelley said. “I really don’t think it will.”
But why wouldn’t it? If a public official can sue a person who makes a public record request and then use tax dollars to pay the legal fees for those who aren’t immediately scared off, then what’s to stop them from repeatedly employing that tactic
For argument’s sake, let’s imagine there arose a public official who came to believe that losing legal arguments was a winning political strategy. Who knows that there isn’t already some public official out there who believes losing a lawsuit claiming Donald Trump was robbed is better than acknowledging Trump’s defeat. Or believes that having multiple federal courts disregard his legal opinion calling a Democratic governor’s public health orders unconstitutional is better than being seen as insufficiently belligerent.
Surely our hypothetical politician would figure that it’s better to lose against “the media” than not fight them.
Pat Magee, who leads the Louisiana Department of Justice’s criminal division, was docked about $20,000 in pay and required to attend emotional intelligence and leadership training as a result of a sexual harassment complaint against him.
Gallo asked for the complaint. She testified Thursday that she was told she’d get the relevant documents once the investigation was completed, but when it was completed, “the attorney general’s office said suddenly that they would no longer be releasing them and they were denying the public records request.”
Alicia Wheeler, an assistant attorney general, said honoring Gallo’s request would have violated the privacy of those who had accused Magee or witnessed him misbehaving — and violated Magee’s privacy, too, she said, because the documents include “unsubstantiated allegations and hearsay.”
Kelley clearly believes that Landry was acting in good faith when instead of providing Gallo the requested records with necessary redactions, he sued her. The judge said he saw no evidence that “the attorney general, or anyone involved in this, in any way whatsoever put their own personal interests ahead of the public. In fact, from what I can see from all of this, the public’s interest was number one in the minds of the attorney general and those that were investigating this.”
If the judge wants to look solely within the four corners of the lawsuit that Landry filed and find a spirit of public service, so be it, but the rest of us can’t help but see Landry’s lawsuit as one more example of his political grandstanding. He’s the former member of Congress who (months after the Deepwater Horizon explosion) held his tacky “Drilling=Jobs” sign during President Barack Obama’s 2011 speech to a joint session of Congress. He’s the AG who sought to embarrass New Orleans Mayor Mitch Landrieu by unleashing a Violent Crimes Task Force on the city that in three months time made 11 whole arrests: most of them involving weed and none involving violence.
If any public official would choose to bedevil the press and other members of the public by filing unwinnable lawsuits, Landry would.
Kelley declaring the records public was a victory, but it’s hard to savor his ruling because he didn’t take the threat of public officials routinely suing reporters and even “normal” people as seriously as he should have.